Caught between two stools – terminating employment during unpaid sick leave
News    ·   09-06-2017

AUTHOR: Ron Galea Cavallazzi, Marisa Vella, Edward Mizzi

Samuel Butler wrote in The Way of All Flesh, “…I reckon being ill as one of the great pleasures of life, provided one is not too ill and is not obliged to work till one is better.” This rings true to most employers and the question often posed is whether exhaustion of statutory sick leave entitlement entitles the employer to terminate employment.

Unfortunately, the response is not as straightforward as one would like since, as in many other areas of employment law, Maltese law lacks the guidelines to help employers tackle this issue and local decisions dealing with the matter are scarce.

In one particular case decided on 29 April 2013 by the Industrial Tribunal in the names of Stephen Chircop and Malta Freeport Terminals Limited (Case Number 3071/CC, decided on 29 April 2013) the Tribunal had held that the dismissal of an employee on the basis that the latter had exhausted his sick leave entitlement, was unjust. In this case, the employee had carried out a number of check-ups with specialists after suffering from a slipped disc. Five months later, the company informed the employee that his employment was terminated and the employee was able to return to work one week later.

What the Tribunal noted was that the employer had not looked into when the employee could reasonably be expected to return to work and had, instead, abruptly terminated the employment contract. It also mentioned that the collective agreement did not tackle situations where employees go out on extended sick leave. This begs the question – what rules must an employer follow to be able to terminate a contract in such a circumstance?

There are no specific rules or regulations on this point but what we can say with certainty is that having a provision included in an employment contract would definitely help an employer when making a defence. The same goes for having an independent doctor or specialist examine the employee to see when one may reasonably expect him or her to return to work. In any event, however, the main guideline is that the employer acts reasonably and that the decisions taken may be justified with respect to the needs of the business, while clearly not being intended as a mere excuse to terminate the relevant employee’s employment.


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